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Pornography: A Liberal’s Unfinished Business

Published online by Cambridge University Press:  09 June 2015

Rae Langton
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Extract

Old wars about pornography and censorship have new armies in radical feminists. So Ronald Dworkin once remarked, defending the new relevance of his now classic liberal defense of free speech in his essay, ‘Do We Have a Right to Pornography?’ Dworkin was right about the new battles, but wrong about his argument, which on the new battle ground not only failed to justify the permissive conclusion he desired, but helped to justify the prohibitive conclusion he despised. Pornography’s traditional foes said pornography is immoral. Feminists said pornography is ‘the graphic, sexually explicit subordination of women through pictures or words’. Feminists said that pornography harms women, subordinates women, and silences women. In this context, Dworkin’s old anti-moralist defense of pornography missed its mark.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 12 , Issue 1: Legal Theory , January 1999 , pp. 109 - 133
Copyright
Copyright © Cambridge University Press 1999

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References

1. Dworkin’s remark is in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 1 while ‘Do We Have a Right to Pornography’ is at 335–72.1 have argued that from a Dworkinian theoretical perspective pornography ought to be censored; see ‘Whose Right? Ronald Dworkin, Women and Pornographers’ (1990) 19 Phil. & Publ. Affairs at 311–59, reprinted in Patrick Grim, Gary Mar & Peter Williams, eds., The Philosopher’s Annual 1990 (Atascadero, CA: Ridgeview, 1992) at 121–70, and (in part) in Sue Dwyer, ed., The Problem of Pornography (Belmont, CA: Wadsworth, 1995) at 91–107. Page references are to the 1990 version. The ‘new armies’ of which Dworkin spoke also included the Moral Majority, and against their attack on pornography Dworkin’s argument is successful (on his assumptions).

2. Pornography is defined as ‘the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised, or hurt in a context that makes these conditions sexual.’ Catharine MacKinnon, ‘Francis Biddle’s Sister’ in Feminism Unmodified (Cambridge, MA: Harvard University Press, 1987) at 176, cf. also MacKinnon, Only Words (Cambridge, MA: Harvard University Press, 1993). That is what I shall take pornography to be, ignoring for the purposes of this essay any political or philosophical problems presented by the definition.

3. ‘Ronald Dworkin, ‘Liberty and Pornography’ The New York Review of Books (15 August 1991) 12–15; published as ‘Two Concepts of Liberty’ in Edna & Avishai Margalit, eds., Isaiah Berlin: A Celebration (Chicago: University of Chicago Press, 1991) at 100–09; reprinted as ‘Liberty and Pornography’ in The Problem of Pornography, supra note 1 at 113–21. Page references are to The New York Review of Books version. Dworkin’s review of MacKinnon’s Only Words appeared as ‘Women and Pornography’ The New York Review of Books (21 October 1993) at 36, 38, 40–42.

4. Not everyone agrees that pornography is speech, but for present purposes I accept that it is. Not every feminist is sympathetic to MacKinnon’s arguments either, but for present purposes I shall not discuss her feminist critics. And I shall ignore the admittedly important fact that much feminist argument aims not at censorship, but at civil actionability.

5. MacKinnon, Feminism Unmodified, supra note 2 at 156, italics deleted.

6. ‘Women and Pornography’, supra note 3 at 40.

7. MacKinnon’s argument about silence is defended, and Dworkin’s response criticized, in my paper ‘Speech Acts and Unspeakable Acts’ (1993) 22 Phil. & Publ. Affairs at 293–330, reprinted in Tom Campbell & Wojciech Sadurski, eds., Freedom of Communication (Aldershot: Dartmouth, 1994), and (revised and abridged) in Hugh LaFollette, ed., Ethics in Practice (Cambridge, MA and Oxford: Blackwell, 1997) (page references are to the 1993 version); in Jennifer Hornsby & Langton’s ‘Free Speech and Illocution’ (1998) 4 Legal Theory at 21–37; and in Hornsby’s ‘Speech Acts and Pornography’ (1993) 10 Women’s Phil. Rev. at 38–45, reprinted with a postscript in The Problem of Pornography, supra note 1 at 220–32 (page references are to the latter version), ‘Illocution and its Significance’ in S.L. Tsohatzidis, ed., Foundations of Speech Act Theory (London: Routledge, 1994), and ‘Disempowered Speech’ (1995) 23 Phil. Topics at 127–47.

8. American Booksellers, Inc. v. Hudnut 771 F 2d 329 (7th Cir. 1985). This passage is omitted in Dworkin’s quotations of the judge’s words, although it is alluded to briefly in a footnote, where Dworkin describes the Court’s acceptance of the premises of the legislation as ‘a confused passage’, and then denies in any case that the passage concerns sexual violence (‘Liberty and Pornography’, supra note 3 at 13).

9. Williams Report: Home Office, Report of the Committee on Obscenity and Film Censorship. Cmnd. 7772 (London: Her Majesty’s Stationery Office, 1979) at 145–46.

10. Only Words, supra note 2 at 71.

11. Bernard Williams, ‘Drawing Lines’ (Review of MacKinnon’s Only Words) (1994) 16 (9) London Review of Books at 9–10.

12. ‘Liberty and Pornography’, supra note 3 at 14.

13. ‘Women and Pornography’, supra note 3 at 40.

14. See Ronald Dworkin, ‘Reverse Discrimination’ in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at 223–39, for the distinction between rights-based and goal-based arguments of equality. Dworkin defends a goal-based strategy for justifying reverse discrimination policy. The general distinction between goal-based and rights-based arguments, and the relation of the latter to equality, is discussed in much of Dworkin’s work, but see especially ‘What Rights Do We Have?’ in Taking Rights Seriously at 266–78.

15. Langton, ‘Whose Right?’, supra note 1 at 311.

16. ‘Liberty and Pornography’, supra note 3 at 14.

17. This and the preceding quotation are from ‘Women and Pornography’, supra note 3 at 40.

18. ‘Liberty and Pornography’, supra note 3 at 14.

19. ‘Women and Pornography’, supra note 3 at 41.

20. Dworkin, ‘What is Equality? Part 3: The Place of Liberty’ (1987) 73 Iowa L. Rev. at 9.

21. ‘Women and Pornography’, supra note 3 at 42.

22. For example, in ‘Reverse Discrimination’, supra note 14.

23. In ‘Reverse Discrimination’. Dworkin has not, to my knowledge, changed his mind about the conclusion of that paper.

24. ‘Women and Pornography’, supra note 3 at 40, emphasis added.

25. Ibid.. emphasis added.

26. Ibid. at 41, emphasis added.

27. Discussed in Frank Michelman, ‘Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation’ (1989) 56 Tenn. L. Rev. at 299.

28. Isaiah Berlin, ‘Two Concepts of Liberty’ in Four Essays on Liberty (Oxford: Oxford University Press, 1969); the collection is Isaiah Berlin: A Celebration, supra note 3. In what follows I consider Berlin as interpreted by Dworkin.

29. ‘Liberty and Pornography’, supra note 3 at 14.

30. Dworkin, ‘What is Equality?’, supra note 20 at 9.

31. The celebration, and the quotation of Berlin’s words, are in ‘Liberty and Pornography’, supra note 3 at 15.

32. See, e.g., in ‘What Rights Do We Have?’, supra note 14 and, for the free speech case, ‘Do We Have a Right to Pornography?’, supra note 1.

33. The quotation is from Feminism Unmodified, supra note 2 at 172.

34. ‘Liberty and Pornography’, supra note 3 at 14. There seems to be another lack of fit, this time between the facts and the borrowed theoretical lens through which the facts are viewed. It is not obvious that Dworkin should attribute talk of positive liberty to MacKinnon, or to the Court. Is MacKinnon talking about positive liberty when she says, in the passage quoted, that the way men see women defines who a woman can be? There seems to be more to this idea than that of a self out of control (needing ‘mastery’), or a self unable to participate in public life. Is the Court talking about positive liberty when it says ‘the government must leave to the people the evaluation of ideas … an idea is as powerful as its audience allows it to be … [the assumed result) simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental mediation’? It is obscure how Dworkin thinks this passage shows that the Court wants to allow ideas to have whatever consequences follow from their dissemination, ‘including undesirable consequences for positive liberty.’

35. ‘Liberty and Pornography’, supra note 3 at 12.

36. ‘Speech Acts and Unspeakable Acts’; Hornsby & Langton, ‘Free Speech and Mocution’, supra note 7. See also Hornsby, ‘Speech Acts and Pornography’. Readers are referred to these articles for a fuller presentation of the argument.

37. See ‘Francis Biddle’s Sister’ in Feminism Unmodified, supra note 2, and Only Words, supra note 2 at 63–68.

38. See J. L. Austin, How to Do Things with Words (Oxford: Oxford University Press, 1962).

39. Feminism Unmodified, supra note 2 at 228.

40. Jennifer Hornsby, ‘Speech Acts and Pornography’, supra note 7.

41. Hornsby emphasizes that the silencing may go beyond the speech acts having to do with sexual communication: that since reciprocity is a condition for all communicative illocutions, simple illocutionary acts like telling and stating can be affected. She suggests too that the silencing may sometimes be a partial affair: there may be cases where it is not impossible for someone to do a certain illocutionary thing with her words, but the expectations she confronts create obstacles that amount to a partial silencing. And it may be created in the gradual, cumulative way that is common to other aspects of change within language, for example, changes in meanings of words: ‘Just as non-standard usages of individual words can cumulatively affect our locutionary acts (our language), so the distribution of pornographic material may affect our illocutionary acts (our use of language)’, ‘Speech Acts and Pornography’, supra note 7 at 228.

42. ‘Liberty and Pornography’, supra note 3 at 15.

43. Ibid.

44. Ibid.

45. ‘Women and Pornography’, supra note 3 at 38.

46. Ibid. at 38, 40.

47. This is argued by Homsby in ‘Speech Acts and Pornography’, and ‘Disempowering Speech’; and by Homsby & Langton in ‘Free Speech and Illocution, supra note 7. The conception of free speech as a matter of locution only is explicit in Daniel Jacobson, ‘Freedom of Speech Acts? A Response to Langton’ (1995) 24 Phil. & Publ. Affairs at 64–79.

48. There may be an argument, with roots in Mill, to say that free speech does require even more, that it requires attentive, ‘listening’ audiences (see Hornsby & Langton, ‘Free Speech and Illocution’, supra note 7 at 34), but I do not consider that argument here. Note that on the thin, locutionary conception of speech, a person whose speech is drowned out by the heckler still has his speech. That Dworkin allows that such a person is silenced suggests that a richer conception of speech may sometimes be attributed to him.

49. If, on the other hand, free speech understood as freedom of locution is a negative liberty, and free speech understood as requiring anything more is a positive liberty, then the feminist argument takes free speech to be a positive liberty. On this assumption—which, as I have indicated, there are grounds for doubting—Dworkin’s conception of free speech as a negative liberty is criticized by Hornsby and myself in ‘Free Speech and IUocution’, and by Hornsby in ‘Speech Acts and Pornography’, and ‘Disempowering Speech’, supra note 7.

50. Director of Public Prosecutions v. Morgan [1976] AC 182 (H.L.).

51. See, for example, E. M. Curley, ‘Excusing Rape’ (1976) 5 Phil. & Publ. Affairs 325; M. T. Thornton, ‘Rape and Mens Rea’ in Kai Nielsen & Steven C. Patten, eds., New Essays in Ethics and Public Policy. Can. J. of Phil., Supp. Vol. 8 (1982) 119–46; C. L. Ten, Crime, Guilt and Punishment. (Oxford: Oxford University Press, 1987) at 104–05.

52. This is paraphrased from Easterbrook’s judgement about pornography in Hudnut, quoted approvingly by Dworkin in ‘Liberty and Pornography’, supra note 3 at 15.